P.D. Hamir and Co. vs Suresh Chandra Sarkar

Bucknill, J.—This was an application in criminal revisional jurisdiction. It was made in connexion with an order passed by the Deputy Magistrate of Dhanbad on the 22nd of January last under the provisions of Section 147, Criminal P.C. By this order the Magistrate directed that the applicants here should not take exclusive possession of a certain road until they have obtained an order of a competent Court adjudging them to fee entitled to such exclusive possession.

An application was made by the petitioners to the Additional District Magistrate of Dhanbad asking for a reference to this Court and a recommendation that the Deputy Magistrate''s order should be set aside; but the Additional District Magistrate on the 23rd of February last rejected this petition. The matter has now come before me in revision.

The area in which the dispute about the right of way arose is one in which there seem to be situated collieries and brick-kilns. The petitioners, who are three in number, constitute a firm called P.D. Hamir and C., and the opposite party is the Manager of the Pandebera Colliery. The petitioners are said to be She owners of the Colliery known as the Durgapur Colliery which lies north of the Pandebara Colliery managed by the respondent. On the eastern side of the applicant''s property there is a road or track leading up to a District Board road which runs along the northern portion of the applicant''s land. From the southeastern angle of the applicant''s property the cart-track turns to the west and runs towards a brick-kiln where bricks are either made or stored by the applicants. It is said that there is a continuation of the road on the applicant''s property from the south-eastern angle on to the laud of the Pandebera Colliery.

Put shortly, the dispute was, as between the applicants and respondent; that the applicants claimed that they had an exclusive right on this road which lay on their property in Durgapur Mouza whilst the respondent claims that his colliery had rights of way over the road. According to the respondent''s story it had, for a very long time, been the practice of his colliery to send carts with goods to and from Pandebera leaving or joining the applicant''s road at the southeast corner of the applicants'' property; but that recently they have been stopped.

The proceedings were started by an application made on 5th of March 1925 to the Magistrate by the respondent asking for proceedings to be taken under the provisions of Sections 107, 144, and 147 of the Criminal P.C. This petition averred that the road used for coming and going from and to Jharia and Pandebera passed through Durgapur and that P.D. Hamir and Co., were, without any right whatsoever, forcibly preventing any cart going along the road and were blocking the passage of the public. That when the petitioner went to forbid them blocking the road the opposite party was ready to make a breach of the peace. The petitioner complained that if the roads are obstructed the work of the Pandebera Colliery as well as the communication of the public and other people of the mouza by cart or otherwise would be stopped. The petitioner also alleged that the road has thus been in use for a long time. Apparently the senior Deputy Magistrate held a local enquiry and finding that there was no chance of an amicable settlement commenced proceedings u/s 147.

Written statements of course were filed. The respondent here in his written statement put forward what might be read as a kind of double claim; the first being based on a statement that his Colliery had been using the road over 20 years without any dispute or objection. By this the respondent, I imagine, contemplated a claim in the nature of an easement. But the respondent also alleged that from time immemorial the road had been a public road. I need hardly point out that these two claims are really of somewhat different character and are capable of proof in different ways. If a personal easement in favour of the respondent was proved, the property in the road, subject to this easement, might still remain exclusively vested in the applicants. If on the other hand it was proved that the road was a public toad, then the applicants would have no exclusive right over it at all.

The applicants'' written statement denied that there was any likelihood of any breach of the peace and maintained that they had exclusive rights over the road and that neither the respondent nor anyone else had any right to drive carts over the track. They denied that the respondent had obtained any right of easement or that it was a public road; and, further, that either the respondent or any member of the public had used the road within 3 months prior to the institution of the proceedings.

The Magistrate heard a considerable amount of evidence on both sides. He found that the track had been for a long time in existence and had constantly been used by many persons. He was impressed by the fact that there was in existence a clear beaten track extending from the end of the road at the south-eastern corner of the applicant''s property down south-wards towards the Pandebera Colliery. Although he does not think that any part of the road is a pucca road, he came to the conclusion that the respondent had made out a sufficient case to justify him in passing an order u/s 147.

There is a good deal of dispute as to whether there was any other method of getting from the Pandebera Colliery to the District Board road in the north than by the way mentioned: the Magistrate does not think that there was another road; even if there was, it is quite obvious that the track which the respondent says has been in use is a very short cut and saves a circuitous and long detour. The Magistrate accordingly passed the order to which I have referred above.

Now the first point which the counsel for the applicants has made is that Section 147 is not appropriate for dealing with obstruction on a public road. He suggests that action u/s 133 of the Criminal P.C., is the appropriate remedy. It is quite true that in the petition the respondent has referred to the road being obstructed and in the map which has been used it seems that at the extreme northern corner of the road some brick cooly huts are being made. The claim, however, was not for the removal of any physical obstruction (if it actually existed) but to prevent the applicants from stopping the carts of the respondent by turning them back. I think that, although the language in which the complaint was couched might not have been very lucid, the real nature of the complaint was as I have indicated.

The next point which was put forward was that the respondent could not claim both a personal easement as well as a public right of way as the two claims are inconsistent. I think it is possible that they might be inconsistent, but at the same time either one or the other might be capable of proof. If one could prove that the road was a public road either by, for example, showing that it had been dedicated to the public or that from time immemorial it had been freely used by the public, no doubt, no question of easement in favour of the respondent would arise. But, on the other hand, although it might seem not to be possible to put forward such proofs as would show that the road was really a public road it might still be possible to prove that the respondent had acquired an easement, I do not think, therefore, that there is anything to prevent a claim of this double nature being made.

Third point which was argued on behalf of the applicants was that no right of easement has been proved and no proof had been adduced that the road was a public one. The argument is based upon the wording of Sub-section (2) of Section 147 which reads: "If it appears to such Magistrate that such right exists he may make an order prohibiting any interference with the exercise of such right." It is contended that in proceedings u/s 147 full proof must be given that a right exists; and in this case, for instance, that it ought either to have been proved that the respondent had a right of easement or that it was a public road. I do not think that that is necessary. The actual rights of the parties must await determination in a civil suit. The provisions of Section 147 are of an emergency nature and are conducted more or less summarily. If the Magistrate, as the result of hearing the evidence, thinks that reasonable grounds have been shown to him that a bona fide claim of right exists, then I think he is justified in passing such order as he may think fit. It is not expected that he should usurp the functions of the civil Court or that the enquiry u/s 147 should be a formal trial of the matter in issue. I have looked through the evidence and I am satisfied that there is sufficient evidence to justify an order being made under the provisions of this section. In the case of Pyari Mohan Shaha and Another Vs. Harish Chandra Shaha, , it was laid down by a Bench of the Calcutta High Court that the words "such right exists" must be understood to mean "such right as is claimed." I think this construction is also one of commonsense.

The fourth point put before me on behalf of the applicants was that there was no evidence to show that there was any user of the road within three months prior to the date of the proceedings. It may be that there was no specific instance of user proved within that period; but, as pointed out by the learned advocate who appeared for the respondent, there was a great deal of evidence of continuous general user up to the date when that respondents'' carts were stopped.

I do not, therefore, think that there is any cogency in the last argument. Under these circumstances, in my opinion, there is no ground for interference with the order which has been made by the Magistrate and I must reject this application.